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DIANE MCDEVITT v. A. GOLIN (05/23/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 23, 1978.

DIANE MCDEVITT, ADMINISTRATRIX OF THE ESTATE OF JOSEPH J. MCDEVITT, A/K/A JOSEPH MCDEVITT, DECEASED, PLAINTIFF
v.
A. GOLIN, ET AL., DEFENDANTS

Original jurisdiction in case of Diane McDevitt, Administratrix of the estate of Joseph J. McDevitt, also known as Joseph McDevitt, Deceased, v. A. Golin, also known as Abraham Golin, individually and trading as "A. Golin," and trading as "A. Golin Wholesale Meats," and trading as "A. Golin Co.," and/or as "A. & C. Realty Corp." and/or "A. Golin, Inc.," and City of Philadelphia and The Philadelphia Port Corporation, and Navigation Commission for the Delaware River and its Navigable Tributaries, and Department of Transportation of the Commonwealth of Pennsylvania, and Delaware River Port Authority.

COUNSEL

George T. Guarnieri, for plaintiff.

Steven D. Johnson, with him G. Wayne Renneisen, for defendant, Golin.

James D. Wilder, for defendant, Philadelphia Port Corporation.

Richard S. Herskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants, Navigation Commission and Department of Transportation.

Joseph H. Foster, with him Thomas R. Cunningham, and, of counsel, White and Williams, for defendant, Delaware River Port Authority.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 35 Pa. Commw. Page 411]

Diane McDevitt (plaintiff) has brought this action as administratrix of her husband's estate, alleging the liability of various parties for the death of her husband on or about January 13 or January 14, 1976. It is alleged that the decedent's car struck an unattended truck at night and that he was either thrown into the Delaware River by the collision or fell into the river

[ 35 Pa. Commw. Page 412]

    while trying to free his vehicle or seek assistance. Preliminary objections to the complaint in this case brought as an original jurisdiction action in this Court*fn1 were filed by A. Golin, alleged owner of the truck, The Philadelphia Port Corporation, Navigation Commission for the Delaware River and its Navigable Tributaries (Commission), Department of Transportation of the Commonwealth of Pennsylvania (PennDOT), and Delaware River Port Authority (Authority). Since the parties upon which our original jurisdiction is based are immune from liability, we transfer the balance of this action to the Court of Common Pleas of Philadelphia County.

By way of preliminary objections "in the nature of a petition raising a question of jurisdiction,"*fn2 PennDOT has asserted that Article I, Section 11 of the Constitution of Pennsylvania prohibits such an action against the Commonwealth without its consent. At this writing, it is clear that the prevailing case law in this Commonwealth supports PennDOT's entitlement to the cloak of sovereign immunity. See Sweigard v. Department of Transportation, 454 Pa. 32, 309 A.2d 374 (1973); Iudicello v. Department of Transportation, Pa. Commonwealth Ct. , 383 A.2d 1294 (1978); Tokar v. Department of Transportation,

[ 35 Pa. Commw. Page 41329]

Pa. Commonwealth Ct. 383, 371 A.2d 537 (1977). tions.*fn3 At the time in question, the Commission was a departmental administrative commission in the De- Therefore, we will sustain PennDOT's preliminary objections.

The Commission filed similar preliminary objec-partment of Transportation. Section 202 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended by Section 4 of the Act of December 3, 1970, P.L. 834, 71 P.S. § 62.*fn4 We have previously held that other departmental administrative commissions are included under the umbrella of protection of the Commonwealth's sovereign immunity. See, e.g., Hart v. Spectrum, Arena, Inc., 15 Pa. Commonwealth Ct. 584, 329 A.2d 311 (1974) (State Athletic Commission). Since the Commission is entitled to the same immunity as PennDOT, we will also sustain its preliminary objections.

The Authority filed preliminary objections in the nature of a demurrer asserting, in part, the defense

[ 35 Pa. Commw. Page 414]

    of sovereign immunity.*fn5 In Anderson Appeal, 408 Pa. 179 182 A.2d 514 (1962), the Supreme Court specifically held that the Authority, which was created by a compact between the Commonwealth and the State of New Jersey,*fn6 was entitled to this immunity. The Superior Court has reaffirmed this view in recent years. See Yancoskie v. Delaware River Port Authority, 235 Pa. Superior Ct. 263, 340 A.2d 533 (1975) (allocatur granted, argued April 22, 1977); Enoch v. Food Fair Stores, Inc., 232 Pa. Superior Ct. 1, 331 A.2d 912 (1974). Moreover, our decision in Kennedy v. Delaware River Joint Toll Bridge Commission, 23 Pa. Commonwealth Ct. 662, 354 A.2d 52 (1976), relied on Anderson in finding that the defendant there was entitled to the immunity of the sovereign. Since we agree that these cases and the reasoning behind them reflect the current state of the law, we will sustain the Authority's demurrer based upon this immunity.

Since we sustain preliminary objections of PennDOT, the Commission, and the Authority, and as we have no independent original jurisdiction over A. Golin, the City of Philadelphia, or The Philadelphia Port Corporation, we must transfer these proceedings to the Court of Common Pleas of Philadelphia County. See Section 503(b) of the Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.503(b); Lerro v. Department of Transportation, 32 Pa. Commonwealth Ct. 372, 379 A.2d 652 (1977). In light of this, we do not rule on the preliminary objections of A. Golin or The Philadelphia Port Corporation.

[ 35 Pa. Commw. Page 415]

Order

And Now, this 23rd day of May, 1978, the preliminary objections of the Department of Transportation, the Navigation Commission for the Delaware River and its Navigable Tributaries, and the Delaware River Port Authority are sustained, and the plaintiff's complaint as to them is dismissed.

With respect to defendants A. Golin, the City of Philadelphia, and The Philadelphia Port Corporation, the case is transferred to the Court of Common Pleas of Philadelphia County for disposition of the outstanding preliminary objections and for all further proceedings. The Chief Clerk shall transmit the record of the above proceedings in its entirety to the Prothonotary of said court, together with a copy of this order.

Disposition

Preliminary objections sustained. Complaint dismissed as to those defendants. Case transferred to the Court of Common Pleas of Philadelphia County.


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